PRACTICE DIRECTION NUMBER 11 OF 2012 SUPREME COURT OF QUEENSLAND SUPERVISED CASE LIST

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1 PRACTICE DIRECTION NUMBER 11 OF 2012 SUPREME COURT OF QUEENSLAND SUPERVISED CASE LIST 1. Practice Direction No 6 of 2000 is hereby repealed. 2. This Practice Direction is intended to (a) provide some explanation of the nature and function of supervision of cases on the Supervised Case List; (b) inform parties (and particularly their legal advisers) of what is expected of them in the course of supervision of such cases. 3. To the extent that it is consistent with the just determination of cases, supervision seeks to maximise the efficient utilisation of time allocated to the hearing of cases on the List. In particular, it seeks: (a) to ensure that, at the trial, the parties focus on matters which are genuinely in issue in the case; (b) to minimise time spent at trial proving matters which are not genuinely in issue; (c) otherwise to ensure that evidence at trial is presented as efficiently as is consistent with a fair hearing of the case; (d) to ensure that the prospects of settlement, whether of the whole case, or some issue or issues in the case, have been fully explored before dates are allocated for the trial of the matter; (e) to ensure that a case is fully prepared, or at least sufficiently prepared, before trial dates are allocated to it; (f) otherwise to minimise the risk of an adjournment of the trial. 4. Supervision also seeks to ensure that a case is prepared for trial as efficiently as is possible; and to the extent consistent with a just hearing, that the cost of litigation is reduced. 5. The value of consistency in the supervision of cases is recognised. However, it is also recognised that different cases come onto the List at different stages of their preparation, and with different needs. 6. Parties to a case on the Supervised Case List are particularly referred to the following:- (a) rule 5 of the UCPR; (b) part 4 of chapter 9 of the UCPR (ADR processes); (c) part 5 of chapter 9 (offers to settle); (d) PD 10 of 2011 (Use of Technology for the efficient management of documents during litigation);

2 (e) Guidelines for the management of documents in litigation (D M Guidelines copy attached); (f) Guidelines for Joint Conferences of Expert Witnesses (Expert Conference Guidelines copy attached). Listing 7. The bases on which a matter will be placed on the Supervised Case List are (a) a party estimates that the trial or hearing will take more than five days; or (b) a case (or group of cases) is identified as imposing a greater than normal demand on resources because of considerations such as length of time, complexity of issues, or multiplicity of parties. 8. Groups of cases may be listed if they have sufficient common or other features which make this desirable. 9. Where in a Request for Trial Date, a party estimates that the length of the trial will exceed five days, the registry will refer the case to the Supervised Case List Manager (SCL Manager). 10. A party may at any time make a request to the SCL Manager for a matter to be placed on the Supervised Case List. 11. A Judge may at any time order that a matter be placed on the Supervised Case List. The Judge s Associate is to advise the SCL Manager of the order. 12. In any of these cases, the parties should complete the questionnaire found at attachment three to this Practice Direction, and deliver it to the SCL Manager. When that is done, the SCL Manager will assign the matter to a Judge (Supervising Judge) managing cases on the Supervised Case List, and advise that Judge s Associate (Associate) accordingly. 13. The Associate will then arrange a time when the matter will come before the Supervising Judge (either to determine that the matter be placed on the List, or for initial review). 14. It is expected that parties who are legally represented will, at any review, be represented by a lawyer who has the conduct of the case. Often this will be the barrister who is to have the conduct of the trial. However, it may be a lawyer with substantial litigation experience, who is in a position to make decisions at the review about the future conduct of the litigation. 15. When a matter first comes before a Supervising Judge, the following will usually be considered:- (a) whether at that stage, directions should be made varying the operation of the UCPR provisions for disclosure (for example, to give effect to a document plan, or to facilitate the application of the D M Guidelines), governing

3 arrangements for the management of documents, or for the trial to be conducted as an etrial; 1 (b) whether directions should be made for the undertaking of alternative dispute resolution procedures (ADR) at that stage; and if not, at what stage ADR should occur. Reviews: subject matter 16. Reviews will usually deal with the following matters (in a sequence appropriate for the individual case):- (a) parties; (b) pleadings, including particulars; (c) disclosure; (d) ADR; (e) whether any issue should be determined before the trial of other issues (early determination of an issue); (f) expert evidence; (g) trial arrangements (including trial plans, ways of giving evidence, and proof of documents); (h) the date for any further review. 17. At an early stage, the parties should address the question whether all appropriate parties have been joined in the action. The attention of the parties is particularly drawn to the provisions of the Civil Liability Act 2003 (Qld), for a case involving an apportionable claim. 18. At an early stage, the parties should identify and attempt to resolve any challenge relating to the adequacy of the pleading of another party, and any difficulty relating to particulars. 19. Where the parties have not agreed on a document plan pursuant to Part 4 of PD 10 of 2011 before the matter is placed on the Supervised Case List, they are to proceed in accordance with the D M Guidelines. Any necessary directions are to be sought from the Supervising Judge at a review. Where the parties have agreed on a document plan pursuant to Part 4 of PD 10 of 2011 before the matter is placed on the Supervised Case List, they may nevertheless be directed to proceed in accordance with the D M Guidelines. 20. Parties are expected to attempt to reach agreement about whether and when they should engage in ADR; the form of ADR; and arrangements for undertaking ADR. They should inform the Supervising Judge of any agreement reached; or explain why no agreement has been reached. This should occur by no later than the second review. In the course of ADR, the parties, if they are unable to resolve the action, should attempt to resolve individual issues. 21. Where a party considers that early determination of an issue is appropriate, it should so advise the other parties, and inform the Supervising Judge at the next review. 1 See P D 10 of 2011 and the D M Guidelines.

4 22. Once a party recognises that it is likely that expert evidence will be required in respect of an issue in the case, that party should notify all other parties of the area of expertise. The Supervising Judge should also be informed at the next review. 23. The parties should attempt to reach agreement, and if necessary seek directions, about the following matters in relation to expert evidence:- (a) whether it is appropriate to appoint a joint expert in respect of one or more of the issues in the case, and if so, the arrangements for the appointment of such an expert (relevant considerations include whether the evidence primarily involves compilation and/or calculation; the value of the issue to which the evidence relates; and the resources of the parties); (b) steps to be taken under the Expert Conference Guidelines. 24. Where directions are made for experts to prepare a joint report, they should usually include a direction that an expert is not to give evidence which is materially different from any view expressed by the expert in a joint report, without the leave of the Court. A party proposing to apply for leave should give notice forthwith to all other parties, together with an explanation of the reason for the application; and should inform the Associate of the application. Other matters relating to reviews 25. Parties are expected to confer at least one week before any review, to attempt to agree about directions to be sought at the upcoming review. 26. Where parties reach agreement about the directions to be made, they are to provide, by , a copy of the agreed directions to the Associate. If the Supervising Judge is prepared to do so, such directions may be made without a formal hearing. 27. If the parties are unable to agree about directions, each party is to provide to the Associate, by , a copy of that party s draft of the directions sought. 28. Directions will usually nominate dates by which directions are to be complied with. 29. Once a matter has been assigned to a Supervising Judge, communications about the supervision of the matter are to be made to the Judge s Associate, usually by , with a copy sent to all other parties. 30. Reviews will generally be limited to the determination of directions, involving only limited disputes. Applications for interlocutory relief and other substantial interlocutory disputes will not be determined at a review. Such matters may be determined by the Supervising Judge on a day allocated in the Court calendar for matters on the List, by arrangement made at a review, or with the Associate. Otherwise, such matters might be dealt with in the same way as in other civil litigation (for example, in the Applications List).

5 Trial 31. Once a matter is placed on the Supervised Case List, it will not be allocated trial dates unless a request for trial date is subsequently filed, or a Judge otherwise orders. 32. Before a request for trial date is filed for a matter on the Supervised Case List, each party is to inform the Supervising Judge at a review that:- (a) it has given recent consideration to whether any additional parties should be joined to the action; (b) it has given recent consideration to the question whether its pleadings properly reflect the case to be presented at the trial; (c) it has given recent consideration to the question whether it maintains any challenge to the pleadings or particulars of any other party; (d) it has recently reviewed the pleadings to identify the issues in respect of which it proposes to adduce evidence, and has considered whether it is in a position to do so; (e) the results of these considerations; and (f) it has considered whether it will make an offer to settle under the rules. 33. Before a request for trial date is filed for a matter on the Supervised Case List, the parties should seek directions in relation to the following matters:- (a) the preparation of a trial bundle (see the D M Guidelines); (b) the identification of documents in the trial bundle, which are to be admitted without objection; (c) the identification of any document in the trial bundle, containing a statement which is to be admitted as evidence of the truth of the statement; (d) the delivery by a party to all other parties of a list identifying all other documents which that party intends to rely on at the trial; (e) whether the evidence of some or all of the witnesses is to be given orally or in some other form; (f) the preparation and exchange of schedules of objections to evidence, including the brief identification of grounds of objection, and responses; (g) the conduct of the trial, whether in whole or part, electronically; (h) the preparation of a trial plan (including the identify of the witnesses to be called, the order in which they are likely to be called, and an estimate of the time required for the evidence of each witness). 34. Once a matter on the List has been allocated trial dates, the parties should seek to make arrangements through the Associate to the Judge before whom the matter is listed, no later than 21 days before the commencement of the trial, about the following matters:- (a) the provision to the Judge of working copies of pleadings and other documents (including joint reports and any other reports of experts), any schedules of objections to evidence, and a trial plan; (b) where relevant, the conduct of the trial electronically; (c) the manner in which expert evidence will be heard (for example, whether experts dealing with a particular issue will give evidence in the ordinary course of the presentation of the case of each party; or successively by area of expertise, or concurrently);

6 (d) whether any other special arrangements are required for any part of the case (for example, evidence by telephone or video link where a party anticipates that there may be a need for such facilities, the SCL Manager should be notified at the earliest opportunity, and no less than 21 days before the hearing date); (e) arrangements for the exchange and delivery of written submissions and copies of authorities. 35. A case may be removed from the Supervised Case List by order of a Judge at any time. Otherwise, a case may be removed from the List by the SCL manager where:- (a) the proceeding (including any appeal) has been finally determined; (b) the whole of the proceeding (including any counterclaim) has been determined. Contact details SCL Manager: Current Associates: supcasemanager@justice.qld.gov.au associate.plyonsj@courts.qld.gov.au; associate.boddicej@courts.qld.gov.au. Paul de Jersey Chief Justice 18 May 2012

7 SCL Practice Direction attachment 1 Supervised Case List Guidelines for Management of Documents Supreme Court of Queensland Management of Documents during Litigation Guidelines for Practitioners in Supervised Cases 1. Introduction 1.1 These Guidelines apply to all cases on the Supervised Case List, subject to Court order. 1.2 These Guidelines are to be applied in a manner that gives effect to Rule 5(1) of the Uniform Civil Procedure Rules, namely to facilitate the just and expeditious resolution of the real issues in civil proceedings at a minimum of expense. 1.3 These Guidelines are based upon the experience that: (a) (b) (c) (d) (e) in most civil proceedings, the issues are determined by reference to a small number of critical documents; in many civil proceedings, large volumes of documents are retrieved and reviewed at great cost resulting in delay and over-disclosure; this problem is exacerbated by the increasing volume of electronic documents and the costs of retrieving and reviewing them; the early, cost-effective resolution of disputes by settlement may be achieved by the early exchange of critical documents; and unnecessary costs and undue burdens are imposed on litigants, non-parties and the community by inappropriate practices in relation to documents in litigation. 2. General guidelines and directions 2.1 Practitioners and litigants are expected to adopt a proportionate and efficient approach to the management of both paper and electronic documents at all stages of proceedings. 2.2 Documents must be managed efficiently to minimize the cost of litigation to both the Court and to litigants. 2.3 Parties must address and plan document management as early as possible in litigation. 2.4 Parties must endeavour to exchange documents in a usable, searchable format or in the format in which the documents are ordinarily maintained to enable the party receiving the documents to have the same ability to access, search, review and display the documents as the party producing them. 3. Deferral of disclosure obligations until a Document Plan is agreed and approved Page 1

8 SCL Practice Direction attachment 1 Supervised Case List Guidelines for Management of Documents Supreme Court of Queensland 3.1 Subject to an order to the contrary, a party is not required to give disclosure under rules 214 or 216 of the Uniform Civil Procedure Rules until ordered by the Court. 3.2 Parties should give active consideration at an early stage for an order pursuant to rule 224 that the party be relieved, or relieved to a specified extent, of the duty of disclosure. 4. Early development of a Document Plan 4.1 Parties should develop at an early stage a Document Plan that will address the management of documents at all stages of the proceedings. These stages include the exchange of critical documents soon after pleadings close, the subsequent provision of further documents pursuant to disclosure obligations or a specific court order, and the management of documents for the purpose of resolution of the proceedings at trial or by alternative dispute resolution. 4.2 The Document Plan should be appropriate to the circumstances of the specific case. 4.3 The fact that the parties have embarked upon disclosure before the matter is placed on the Supervised Case List does not remove the need for a Document Plan. In such cases, a Document Plan will be required to ensure the timely provision of any further documents, and the identification, from amongst the documents that have been disclosed, of a limited number of documents that will be referred to by witnesses in their evidence, be the subject of cross-examination and probably constitute the trial bundle. 4.4 The Document Plan should have as its objective the practical and cost-effective retrieval, review, exchange and use of documents according to a plan that satisfies the principle of proportionality (see section 7 below). It should facilitate the just and expeditious resolution of the real issues in the proceeding at a minimum of expense. 4.5 The Document Plan should be developed during the course of a proceeding. The initial plan should be short and simple, and address the kind of basic issues noted in Appendix A. Practitioners should note that Appendix A is indicative only and provided for the assistance of litigants. It does not replace practitioners obligation to advise parties of parties obligations to provide disclosure. 4.6 Parties are required to confer and agree about a Document Plan before submitting it to the Court for approval. 4.7 Where the parties are unable to agree a Document Plan after taking reasonable steps to resolve their differences, they may apply, by arrangement with a Supervised Case List Judge, for an appropriate order. 4.8 The Court may, in appropriate circumstances, order that the costs associated with the retrieval, review and disclosure of documents not agreed by the parties be borne by the requesting party. [This suggestion is to address the potential question of what are additional documents.] Page 2

9 SCL Practice Direction attachment 1 Supervised Case List Guidelines for Management of Documents Supreme Court of Queensland 4.9 The Court will approve a Document Plan if it satisfies the principle of proportionality, and is likely to facilitate the just and expeditious resolution of the real issues in civil proceedings at a minimum of expense. 5. The use of approved forms for presenting and exchanging documents 5.1 The use of approved forms for presenting and exchanging documents (including the alternative UCPR Form 19, and the etrial Document Management Spreadsheet template) is encouraged. Examples of these forms are available on the Court web-site Reference should be made to PD 10 of 2011 (Use of Technology for the efficient management of documents during litigation). 6. Options for Consideration by Parties 6.1 Parties are encouraged to seek directions in relation to documents that suit the circumstances of the case. Depending on the circumstances, the parties may agree, or the Court may order, one or more of a variety of options for the management of documents. These include: the exchange of critical documents; Fast Track Orders; the exchange of documents to be relied upon, supplemented by additional requested documents; and the exchange of documents limited to certain categories of documents or orders that exclude certain categories of documents. 7. Principle of Proportionality 7.1 The parties must ensure that all steps in relation to documents are proportionate having regard to: (a) (b) (c) (d) (e) (f) the nature and complexity of the proceedings; the amount at stake or the relief sought; the real issues in dispute; the stage the proceedings have reached; the volume of potentially relevant documents; the ease with which documents may be retrieved or reviewed; Page 3

10 SCL Practice Direction attachment 1 Supervised Case List Guidelines for Management of Documents Supreme Court of Queensland (g) (h) the time and costs associated with the proposed steps; and the likely outcome or benefits to be derived by taking the proposed steps and the extent to which these are likely to have a significant impact on the outcome of the proceedings. 8. Reasonable searches 8.1 In undertaking searches for documents, including for the purpose of making disclosure pursuant to Chapter 7 of the Uniform Civil Procedure Rules, or in compliance with a direction of the Court in relation to documents, a party must undertake reasonable searches bearing in mind the principle of proportionality. 8.2 Parties are required to inform each other about the extent of searches that they propose to undertake or have undertaken for the purpose of making disclosure pursuant to Chapter 7 of the Uniform Civil Procedure Rules, or in compliance with a direction of the Court in relation to documents, and to verify the searches that they have undertaken in a statement ( disclosure statement ). 8.3 Where a party has not searched for a category or class of document on the grounds that to do so would be unreasonable, it must state this in its disclosure statement and identify the category or class of document, with an explanation. 8.4 The factors relevant in deciding the reasonableness of a search include the (a) (b) (c) (d) number of documents involved and their location; nature and complexity of the proceedings; ease and expense of retrieval of any particular document; significance of any document, which is likely to be located during the search, in the ultimate resolution of the case. 8.5 As a general rule, the parties should discuss any issues that may arise regarding searches for documents and the preservation of documents before undertaking searches. The parties should confer about and agree the extent of searches to be undertaken. The matter should be referred to the Court for directions only if: (a) (b) (c) the parties are unable to resolve a difference of substance; the circumstances justify the legal costs involved in seeking a judicial resolution of their differences; and the referral of the disagreement to the Court is warranted as a proper use of judicial resources and the legal costs involved 8.6 The extent of the search which must be made will depend upon the circumstances of the case. The parties should bear in mind the overriding principle of proportionality. It may, for example, be reasonable to decide not to search for documents coming into existence before some particular date, or to limit the search to documents in some particular place or places, or to documents falling into particular categories. Page 4

11 SCL Practice Direction attachment 1 Supervised Case List Guidelines for Management of Documents Supreme Court of Queensland 8.7 Further guidance in relation to reasonable search appears in Appendix B. 9. Exchange of Critical Documents 9.1 The following process is directed to the early identification and exchange of critical documents, with a view to facilitating the early resolution of matters. 9.2 Critical documents are those documents in the possession or under the control of a party after a reasonable search and that are likely to be tendered at trial and to have a decisive effect on the resolution of the matter. They include documents that are either supportive or adverse to a party s case. 9.3 Subject to contrary directions, critical documents should be exchanged on a date to be fixed shortly after the close of pleadings. 9.4 The number of such documents to be exchanged should be limited to a number stated in the direction. 9.5 At the time critical documents are exchanged a party should provide a statement that: sets out the extent of the search that has been undertaken to locate critical documents; draws attention to any particular limitations on the extent of the search which were adopted for proportionality reasons and give the reasons why the limitations were adopted, e.g. the difficulty or expense that a search not subject to those limitations would have entailed or the marginal relevance of categories of documents omitted from the search; certifies that documents that are considered to be adverse to the party s case and that have been located by the search, or which are otherwise known to (and are in the possession or control of) the party, have been included. 9.6 If a party seeks to supplement the critical documents, whether by a formal process of disclosure or otherwise, then a case for this should be made out. This should include, amongst other things, an estimate of the likely cost of locating, assembling, reviewing and providing such additional documents. 9.7 Parties should only be put to these costs if a case is made out for such a course. In a particular case the Court may direct that the costs associated with locating, assembling, reviewing and providing such additional documents be paid for by the requesting party. The Court may order that the requesting party pay those costs in any event. 9.8 The parties may agree, or the Court may direct, that the matter will proceed to trial on the basis of the critical documents, or the critical documents supplemented by a limited number of specified documents, and that these will constitute the trial bundle. Page 5

12 SCL Practice Direction attachment 1 Supervised Case List Guidelines for Management of Documents Supreme Court of Queensland 10. Fast Track Directions 10.1 A particular case may warrant a direction similar to the Fast Track Discovery Direction in the Federal Court. A form of direction based on that direction is contained within Appendix C. These and other forms of draft directions are intended to be adapted to suit the circumstances of the case. 11. The exchange of documents to be relied upon, supplemented by additional requested documents 11.1 Parties may develop a Document Plan that adopts a procedure by which, within a time ordered by the Court, each party submits to the other parties a list of the documents upon which it intends to rely at trial, and within a further specified time, a party may submit a request for the party to produce additional specified documents A form of direction is contained within Appendix C. 12. The exchange of documents that are limited to certain categories or orders that exclude certain categories of documents 12.1 Requiring parties to exchange or to disclose formally all the documents that are directly relevant to an allegation in issue in the pleadings (UCPR 211(1)) may not be appropriate in the circumstances of a particular case In some cases it may be appropriate to order limitations on the documents to be exchanged or disclosed by reference to categories of documents. This may be by reference to the categories of documents that are to be exchanged or disclosed, or by providing that certain categories of documents are not to be exchanged or disclosed In developing appropriate Document Plans and draft directions in this regard parties should have regard to the principle of proportionality, and the costs associated with the retrieval, review and exchange of documents in certain categories, particularly electronic documents. 13. Document Plans and Management that will facilitate etrials 13.1 Parties are encouraged to adopt Document Plans that will facilitate the conduct of a trial, if appropriate, as an etrial. An e-trial is an electronic trial that is conducted using computer hardware and software within the courtroom that allows all documentary evidence to be viewed in electronic form by the Court and by those parties involved in the trial. The format in which the documents will generally be viewed is as full text-searchable, multi-page PDF files Further information about etrials appears in Practice Direction 10 of 2011, and can be obtained from the etrials registrar via at etrials@courts.qld.gov.au 13.3 The fact that a proceeding has been conducted for a substantial period without court supervision, with disclosure of documents being undertaken in accordance with the rules in hard copy format, does not preclude the matter being conducted as an etrial if such a course will save costs and time in preparation for trial and the conduct of a trial. Page 6

13 SCL Practice Direction attachment 1 Supervised Case List Guidelines for Management of Documents Supreme Court of Queensland 13.4 If possible, the parties should use and adapt court approved forms that facilitate the exchange of documents in a form that will facilitate a proceeding being conducted as an etrial. In particular, the trial bundle should be available in a form that facilitates a proceeding being conducted as an etrial. 14. Trial Bundle 14.1 The number of documents to be included in a trial bundle should be limited, and subject to a suitable direction that ensures that the bundle consists only of a limited number of documents to which reference will be made by witnesses, and to which the trial judge will be required to have reference in order to determine the real issues in the proceedings The trial bundle should typically only consist of critical documents. Documents should only be included in the trial bundle if a legal representative for a party with responsibility for the presentation of the evidence at the trial believes on reasonable grounds that the document is likely to be referred to in the evidence of a witness, or that its inclusion is otherwise necessary to enable the real issues in the proceedings to be determined at trial During the course of a proceeding, the parties should be attentive to the need to ensure that the trial bundle is limited in its volume and organized in a form that assists the efficient presentation of evidence at trial During the course of proceedings, each party should nominate in a suitable form the documents that it proposes for inclusion in the trial bundle (e.g. asterisks beside a limited number of documents appearing in a document list, the maximum number being specified in the Document Plan or direction) Trial bundles should be arranged in a form that facilitates reference to them both at trial and in preparation for trial (e.g. in the preparation of witness summaries, witness statements and other documents) so that the documents being referred to are readily identifiable and able to be located in the trial bundle. In particular, they should be indexed and paginated. 15. Commitment to Confer and Agree 15.1 The parties to cases in the Supervised Case List are expected to adopt a practical and cost-effective approach to the management of documents This includes the development of Document Plans and the resolution of points of difference without the need for resolution of differences by the Court unless this is clearly necessary Parties are expected to confer (in person, by telephone or video-link) and agree matters in relation to document management. Discussions can be conducted on a without prejudice basis, if necessary Parties should refrain from lengthy, argumentative, evidence-making correspondence. Judicial resources in the Supervised Case List for resolving disputes over documents are limited. Page 7

14 SCL Practice Direction attachment 1 Supervised Case List Guidelines for Management of Documents Supreme Court of Queensland 15.5 If the parties cannot agree, despite reasonable efforts, a Document Plan and suitable directions for the management of documents, then their areas of difference should be succinctly summarized in a joint report to the Supervised Case List Manager, together with a request that the matter be listed for review or resolved on the papers The Court may apply sanctions, including adverse costs orders, against parties who act unreasonably in their conduct of litigation or breach their implied undertaking to the Court and to the other parties to proceed in an expeditious way Parties who reach agreement about Document Plans and suitable directions for the management of documents may submit the same to the Supervised Cast List Manager together with a request that the order be made on the papers. Page 8

15 Appendix A: Document Plans The following are examples of the types of issues which should be considered in developing a Document Plan. An indicative Document Plan is also provided. The Document Plan is not intended to be prescriptive and is simply an example of how a Document Plan may look. 1. Scope of initial exchange of documents 1.1 The parties should agree on the scope of documents to be exchanged at the current stage of proceedings, and have regard to: (a) (b) (c) the importance of limiting the scope of the exchange of documents as far as practicable in order to minimise the time and costs associated with the identification, collection, processing, analysis, review and exchange of documents; the Court s view that it is inefficient and inappropriate to require the production of more documents than are necessary for the fair conduct of the case; options such as: the exchange of critical documents; Fast Track Orders; the exchange of documents to be relied upon, supplemented by additional requested documents; the exchange of documents limited to certain categories of documents or orders that exclude certain categories of documents. 2. Strategies for conducting a reasonable search 2.1 The parties should consider the factors set out in section 8 and Appendix B of these Guidelines and agree upon: (a) (b) the strategies they will use for conducting a reasonable search to locate documents; and any sources and/or categories of documents that are to be excluded from such a search. 3. Management of Electronic Documents 3.1 The parties should consider the potential for documents to be managed as Electronic Documents and agree upon a strategy for the identification, collection, processing, analysis, review and exchange of Electronic Documents. Appendix A to SCL Guidelines Page 1

16 3.2 In most cases, the efficient and cost effective management of documents at all stages of litigation may be enhanced by utilising the alternative UCPR Form 19 (LINK). Presentation and exchange of documents in this format can enable litigants to cost effectively keep control over documents in proceedings and enable any Court hearing to be conducted as an electronic trial. For further assistance, please refer to the Guidelines to Completion of Form 19 List of Documents (LINK) 3.3 Reference should be made to Practice Direction 10 of 2011 (Use of technology for the efficient management of documents in litigation); 4. Preservation of Electronic Documents 4.1 The parties should agree upon a strategy to ensure that electronic documents which are potentially disclosable are preserved in their original format. 5. Estimated Costs of implementing the Document Plan 5.1 The parties should agree on a Document Plan, which may be recorded in the format of Schedules, or in some other concise form. 5.2 Each party should exchange with the other parties their best preliminary estimate of the cost associated with implementing the Document Plan. 6. Document Management Protocol 6.1 The parties should agree on a Document Management Protocol as referred to in Practice Direction 10 of 2011 (Use of technology for the efficient management of documents in litigation). 7. Areas of disagreement 7.1 The parties should record the issues on which they have been unable to reach agreement and the reasons for their disagreement. Document Plan for X -v- Y (No 0001/11) 1. Relief from disclosure The parties agree that an order be sought from the Supreme Court pursuant to rule 224 of the UCPR that they be relieved of the duty of disclosure except to the extent set out in this Document Plan until further order of the Court. This will be a consent order prepared by the Plaintiff. The parties agree that electronic documents that are potentially disclosable will be preserved in their original native format. Appendix A to SCL Guidelines Page 2

17 2. Exchange of critical documents The parties agree that the critical documents in this matter will be exchanged within 14 days of delivery of the Reply. The critical documents are those documents in the possession or control of a party that have been located after a reasonable search and are likely to be tendered at trial and have a decisive effect on the resolution of the matter. They are to include documents that either support or are adverse to a party s case. At this stage, the parties agree that maximum of [50] documents will be produced as the critical documents. 3. Reasonable searches The parties agree that searches for relevant documents (including the critical documents) will be conducted by searches in the following locations: (a) (b) the relevant sale/purchase file of X for each party; the computer hard drive and Outlook folders (including s and documents held in electronic form) for: (i) (ii) (iii) (iv) (v) A B C D E (c) (d) the files containing board minutes, reports or memoranda relevant to the sale/purchase of X and attempts to locate alternative product; the files containing any attempt to locate alternative product. The parties agree that there is no request on either party, at this stage, to undertake the following: (a) (b) restore deleted s from backup files or to otherwise search back up files; and search records evidencing payment of invoices. 4. Disclosure Statement The parties agree that at the same time as provision of the critical documents, they will provide a Disclosure Statement that sets out the searches that have been undertaken to locate the critical and other relevant documents. The Disclosure Statement is to be signed by the clients and will: (a) set out the extent of the searches that were undertaken to locate critical and other relevant documents; Appendix A to SCL Guidelines Page 3

18 (b) (c) draw attention to any particular limitations on the extent of the search that may have been adopted for proportionality reasons as set out in the Supervised Case List Guidelines and give reasons for such limitation; certify that documents that are considered to be adverse to a party s case and have been located by the search, have been included in the critical documents or any further disclosure. 5. Form of presenting, exchanging documents The parties agree to use the alternative schedule in UCPR Form 19 (LINK) as the default Document Management Protocol. 6. Supplementary disclosure Upon the provision of the critical documents, the parties agree that if there is any dispute about the documents provided or a need for further documentation, then a letter from such requesting party will be sent to the other party within 14 days of receiving the critical documents. The receiving party will respond within 7 days. The parties agree that if there is still a dispute between the parties as to the further disclosure of documents, the matter is to be referred to the Court for determination but that the issues for determination are to be limited to the matters identified in the correspondence. The parties agree that the basis for seeking additional documents is that the requesting party can demonstrate that the additional documents are required to assist in the early resolution of the matter or will have a decisive effect on the resolution of the matter. 7. Early resolution bundle Attached to this document plan is a schedule. The parties agree that they will identify in the schedule those documents that they consider should be part of an agreed bundle for the early resolution of this matter. This schedule will be updated throughout the course of the action as it will serve as the template for the trial bundle if the matter does not settle. Initially the parties agree to concentrate on those documents that they consider necessary to resolve this matter promptly. Hence, the documents may be those that will say assist a mediator. The plaintiff has already completed the documents that it considers should be part of the early resolution bundle at this stage in the action and the defendant agrees that upon the provision of the defence, it will supplement this list with further documents that it considers necessary. The parties agree that only those documents that are likely to be beneficial in attempting to resolve this case and will have a decisive effect upon the resolution of the matter will be included in the bundle. Hence, it is likely that most of the documents on the schedule will be those identified by the parties as critical documents. The parties agree that the documents in the schedule will be limited to 30. Appendix A to SCL Guidelines Page 4

19 The parties agree that if the matter does not resolve by [date X], they will exchange any objections to any documents listed in the schedule within 14 days of [date X]. If there is any dispute about the objections, the issue is to be raised at the next supervised case list review before the Court so that a process can be determined to deal with the objections. No further objections can be raised on the listed documents outside this agreed process, without the leave of the Court. Early Resolution Bundle Schedule No. Document Date 1 Contract between X and Y Letter from X to Y Letter from Y to X Report of ABC Appendix A to SCL Guidelines Page 5

20 Appendix B: Reasonable Search and Disclosure Statements 1. Electronic documents 1.1 The duty of disclosure under the rules extends to electronic documents: see UCPR 211 and the definition of document in the Acts Interpretation Act, 1954 (Qld) s 36. These may include and other electronic communications, word processed documents, PDFs and other computer created documents and databases. In addition to documents that are accessible from computer systems and other electronic devices and media, documents may be stored on servers and back-up systems and include electronic documents that users may understand have been deleted. 1.2 The existence of electronic documents impacts upon the extent of the reasonable search for the purposes of disclosure. The factors that may be relevant in deciding the reasonableness of a search for electronic documents include (but are not limited to) the: (a) (b) (c) number of documents involved and their location; nature and complexity of proceedings; ease and expense of retrieval of any particular document. This includes the: (i) accessibility of electronic documents or data including communications on computer systems, servers, back-up systems and other electronic devices or media that may contain such documents, taking into account alterations or developments in hardware or software systems used by the disclosing party and/or available to enable access to such documents; (ii) (iii) (iv) (v) (vi) location of relevant electronic documents, data, computer systems, servers, back-up systems and other electronic devices or media that may contain such documents; likelihood of locating relevant data; cost of recovering any electronic documents; cost of disclosing and providing inspection of any relevant electronic documents; and likelihood that electronic documents will be materially altered in the course of recovery, disclosure or inspection; and (d) significance of any document which is likely to be located during the search in the resolution of the case. 1.3 It may be reasonable to search some or all of the parties electronic storage systems. In some circumstances, it may be reasonable to search for electronic documents by means of keyword searches (agreed as far as possible between the parties) even where a full review of each and every document would be unreasonable. There may be other forms of electronic search that may be appropriate in particular circumstances. Appendix B to SCL Guidelines Page 1

21 2. Disclosure statements 2.1 In making directions for the provision of documents at various stages of proceedings, the Court requires parties to undertake reasonable searches for documents of the kind to be exchanged or disclosed. 2.2 Parties are required to inform each other about the extent of searches that they propose to undertake or have undertaken, and to verify the searches that they have undertaken in a statement ( Disclosure Statement ). 2.3 The Disclosure Statement should: (a) (b) expressly state that the disclosing party believes the extent of the search to have been reasonable in all the circumstances; and in setting out the extent of the search draw attention to any particular limitations on the extent of the search which were adopted for proportionality reasons and give the reasons why the limitations were adopted, eg the difficulty or expense that a search not subject to those limitations would have entailed or the marginal relevance of categories of documents omitted from the search. 2.4 The details given in the Disclosure Statement about the person making the statement must include his or her name and address and the office or position he or she holds in the disclosing party or the basis upon which he or she makes the statement on behalf of the party. 2.5 If the party has a legal representative, the legal representative must endeavour to ensure that the person making the disclosure statement understands the duty to disclose documents in accordance with the Court s order or the Court s rules. 2.6 If the disclosing party wishes to claim that it has a right or duty to withhold a document, or part of a document, the party must state in writing: (a) (b) that it has such a right or duty; and the grounds on which it claims that right or duty. 2.7 The statement referred to in paragraph 6 above should normally be included in the disclosure statement and must indicate the document, or part of a document, to which the claim relates. 2.8 An insurer may sign a disclosure statement on behalf of a party where the insurer has the conduct of proceedings brought wholly or partially by or against that party. The form of the Disclosure Statement to be adapted in the circumstances of the case is: I, the above named [plaintiff] [or defendant] [If party making disclosure is a company, firm or other organisation identify here who the person making the disclosure statement is and why he or she is the appropriate person to make it] state that I have [or have caused to be] carried out a reasonable and proportionate search to locate all the documents which I am [or my employer is] required to disclose under Appendix B to SCL Guidelines Page 2

22 the order made by the court on day of. I did not search for: (1) documents predating, (2) documents located elsewhere than, (3) documents in categories other than, (4) electronic documents I carried out a search for electronic documents contained on or created by the following: [list what was searched and extent of search] I did not search for: (1) documents created before, (2) documents contained on or created by the Plaintiff s/defendant s PCs/portable data storage media/databases/servers/back-up tapes/offsite storage/mobile phones/laptops/notebooks/handheld devices/pda devices (vary or delete as appropriate), (3) documents contained on or created by the Plaintiff s/ Defendant s mail files/document files/calendar files/spreadsheet files/graphic and presentation files/web-based applications (vary or delete as appropriate), (4) documents other than by reference to the following keyword(s)/concepts (delete if your search was not confined to specific keywords or concepts). I certify that I understand the duty to disclose documents under the order made by the court on day of and after undertaking a reasonable search for those documents and to the best of my knowledge I have carried out that duty. I certify that the list above is a complete list of all documents which are or have been in the possession or control and which I am [or my employer is] obliged under the said order to disclose. Appendix B to SCL Guidelines Page 3

23 Appendix C: case General Directions Possible Document Directions to be adapted to the circumstances of the 1. The parties are directed to adopt a proportionate and efficient approach to the management of both paper and electronic documents in proceedings. 2. Subject to an order to the contrary, a party is not required to give disclosure under rules 214 or 216 of the Uniform Civil Procedure Rules until ordered by the court. 3. By.201.the parties confer and agree directions in relation to documents, including, if appropriate, directions that will: (a) (b) (c) (d) (e) provide for the early identification and exchange of critical documents, being a limited number of documents that are likely to be tendered at any trial and are likely to have a decisive effect on the resolution of the matter; require each party to inform the other parties in a concise written statement of the extent of the searches for documents that they propose to undertake, or have undertaken. defer disclosure until the real issues in dispute are identified; limit disclosure to specified documents or classes of documents; reflect a practical, cost-effective and proportionate Document Plan that the parties have agreed or endeavoured to agree; (f) facilitate any trial being conducted in accordance with the Supreme Court s e- trial program. 4. By the parties shall provide to both the Supervised Case List Manager ( supcasemanager@justice.qld.gov.au) and the Associate to Justice. ( associate j@courts.qld.gov.au) a Document Plan and proposed directions in relation to documents. Exchange of Critical Documents 1. By..201 the parties are to exchange critical documents being those documents in the possession or under the control of the party after a reasonable search and that are likely to be tendered at trial and to have a decisive effect on the resolution of the matter. They include documents that are either supportive or adverse to a party s case. 2. The number of such documents to be exchanged by each party should not exceed Appendix C to SCL Guidelines Page 1